New leak probe looks more like a vendetta

WASHINGTON - The last thing this country needs is another major leak
investigation, this one into who blew the whistle on warrantless
domestic wiretaps, with the prospect of another parade of journalists
being hauled before the bar to reveal their sources or face jail
time.

In the first place, it might be difficult to nail any one person
with the disclosure because there seems to be a number of government
officials and intelligence sources who were aware and concerned that
the National Security Agency had expanded its eavesdropping on the
domestic front following the September 2001 terrorist attacks. In fact,
it now looks as though the NSA did so without presidential
authorization, which came later. House Democratic leader Nancy Pelosi
of California raised questions about NSA activities around that
time.

In the second place, if the First Amendment has any meaning left
when it comes to press freedom, there should be an instant declaration
to that effect from the courts, which, of course, is certainly wishful
thinking given recent rulings in these cases, the most prominent being
the leaks that led to the outing of a CIA operative. That incident saw
one reporter held in contempt of court and jailed for protecting her
sources and several others threatened with incarceration unless they
squealed on theirs. Little or no prospect of solace was forthcoming
from the last refuge for constitutional freedoms, the Supreme
Court.

The result is the highly publicized prosecution of a now-former
White House aide, "Scooter" Libby, on allegations he tried to obstruct
the investigation into how the leak took place. Those charges were
brought because of the inability of the special prosecutor to find any
violation of the statute prohibiting such disclosure. Other reporters
never named had similar information that didn't come from Libby,
casting doubt on the entire prosecutorial process.

So now already there are demands for the naming of another special
counsel to find out who leaked the fact that the NSA was spying on
Americans without court approval. Swell.

Let's have another single-minded, overzealous defender of public
outrage take his shot at the press.

Bush was furious over leak

President Bush was unpersuasive in his effort to stop publication of
the story, held for a year out of national-security concerns. He was
furious.

One wonders whether Bush's anger at the press is because he got
caught in a highly questionable activity and is interested not so much
in finding out who leaked the information, but in punishing the
newspaper that embarrassed him by printing it.

There are those who suggest that Bush himself should be investigated
for having authorized the bypassing of statutory judicial restrictions
on the electronic surveillance of domestic conversations, even those
made to overseas locations.

There clearly is room for debate on the president's "wartime"
authority and whether during a time of national emergency he can
arbitrarily suspend certain laws designed to protect American civil
liberties. That debate can be expected to heat up in earnest as the
year progresses. Certainly, other presidents have done so, including
Abraham Lincoln, who suspended habeas corpus during the Civil War.
President Richard Nixon wanted to during the violent anti-Vietnam
protests, but was deterred from doing so by FBI Director J. Edgar
Hoover.

It would be difficult to find a time more fraught with official
animosity for the press, including the Watergate era, when the White
House blamed reporters for anything that went wrong and even placed
them on an enemies list. Some were the victims of wiretaps themselves.
But the danger for a free press lies really in a seemingly
unsympathetic judiciary, one that lacks an understanding of the
necessary bond between sources and journalists in the oversight of
public affairs. Without the assurance of protection from retribution,
those public servants who, for whatever reason, have concerns about
policies or actions by superiors will be reluctant to come forward.

Clearly, there are government operations that should be classified
and those who reveal them subject to punishment.

But what if there is substantial doubt about the legality of those
activities?

What if there is a law like the Foreign Intelligence Surveillance
Act that sets up a process to make these actions legal and that law is
ignored?

What then?

This time the courts have their own credibility to worry about. They
also should be concerned about what is happening to the principle of a
free and unfettered press.